Victor Nealon Case – The difficult decision to sue the CCRC

Readers of the Independent and twittersphere may have seen that a formal letter before action has been issued against the Criminal Cases Review Commission arising out of its past reviews of the case of Victor Nealon .

There are of course many disappointed applicants to the Commission who naturally may see this important action as vindication of their position , some have even suggested the CCRC should be replaced .

This however is not what this case is about nor is it the motivation behind these proceedings .

We should be clear to those who latch onto this story on that premise that we continue to support the commission and the difficult job it does with limited resources . Under no circumstances do we wish to see the demise of the commission . In fact what we need to see come out of the Justice Committee review or the sort of examination of process that a claim like this brings is an improved commission with more powers and better funding .

There is no doubt that in the Nealon case the commission fell into serious error . The applications made to it in 1999 and 2002 contained a diverse set of issues accompanied by many supplementary submissions . Two central themes emerged namely the issue of the police investigation and the DNA testing which had been requested . Despite those serious concerns the Commission not only failed to undertake the testing but erroneously relied on police assurances over the testing done .

Alarm bells were ringing in this case over the police conduct and the commission should have gone further than its desktop review , it should have questioned the audit trial of the forensic exhibits and what had happened . It did not do so .

In 2002 the Commission turned Victor Nealon away telling him it would not undertake speculative tests , the tests were as we know not speculative at all . His conviction was quashed on the basis that someone else’s DNA was found on the victims clothing .

Even more worryingly at a recent face to face meeting where the Chairman of the Commission Richard Foster offered a direct apology to Victor Nealon , it was admitted that the Commissions record keeping was so poor in this case that they could not identify any details of the wrong information from the police which they relied upon – put simply according to the commission there was no audit trail to the earlier investigations which seems inexplicable . This was a breach of their obligation to keep records of their investigations as a public body .

As can be seen therefore this case far exceeds the normal problems that applicants may encounter with the Commission , here the organisation had been clearly negligent and breached its duty of care . Victor Nealon was entitled to rely on the Commission undertaking a proper investigation of the concerns he raised – to adopt what is known as the Caparo Test – “it was fair just and reasonable to do so” . This duty applied at the moment the commission agreed to investigate the case .

Readers should not expect that if the Claimant is right that this will open the floodgates so far as other applicants are concerned . It may be that there will be a limited number of cases which may need to be revisited but in general terms it is anticipated that in most cases the commission should not have made sort of serious mistakes it made in the Nealon Case . Making decisions applicants may not agree with or discounting potential lines of enquiry which are not considered reasonable will remain unchanged with the protection of the Administrative Court . The Commission should rightly retain a right to disagree with applicants and their representatives and to use its scarce resources as is appropriate and reasonable to a given case , otherwise the Commission couldn’t effectively operate .

What the commission should not be entitled to do however is make the sort of mistakes that were made in the Nealon Case , to act negligently in its review , to accept too readily police assurances in a case where there were serious concerns and to give precedence to an erroneous policy over its duty of care to an applicant .

There are clear lessons to be learnt by the commission in the Nealon Case and part of that process should be to offer proper redress to an applicant when things go so badly wrong . There is no question that in this case the time served by Victor Nealon in custody was elongated by the failings of the CCRC , that simply is not good enough for an independent body to whom those wrongfully convicted turn to for help .

Victor Nealon is represented by Mark Newby of QualitySolicitors Jordans . His Counsel is Matthew Stanbury of Garden Court North Chambers Manchester